Software License Agreement - Portal Software Inc.
Form of Registrant's Software License Agreement
SOFTWARE LICENSE AGREEMENT
This Software License and Support Agreement is entered into by and between
Portal Software, Inc, a Delaware corporation with principal offices located at
10200 South De Anza Boulevard, Cupertino, California 95014 ("Portal") and
___________________________, a ________________________ corporation with
principal offices located at _____________________________________ ("Licensee")
and shall become effective on the date it is signed by Portal ("Effective
Date").
1 DEFINITIONS
The following terms shall have the meanings set forth below. Additional terms
may be defined on attached Schedule A. "Agreement" means this Software License
Agreement, including any and all attached Schedules, addenda amendments hereto
and Orders hereunder. "Application" means the scope of activity for which the
Licensed Software will be used as specified on attached Schedule A. The Licensed
Software will not be used for any other purpose or activity outside of the
designated Application without Portal's explicit prior written consent. "CDR"
means a call detail record, an event detail record or other instance of data
pertaining to an incoming or outgoing communication (such as time, duration,
identity or location of sender or recipient, etc.). "Confidential Information"
means this Agreement, and any and all software (whether in object code or source
code), user documentation, data, drawings, benchmark tests, specifications,
Documentation, release notes, trade secrets, logins, passwords and other access
codes and any other information disclosed by one party to the other which is (i)
conspicuously marked "confidential" or "proprietary" if in tangible form, (ii)
identified as "confidential" or "proprietary" at the time of disclosure or (iii)
any other information that, when taking into consideration the circumstances
surrounding disclosure of the same, a reasonable person would determine to be of
a confidential or proprietary nature. "Delivery Date" means the date that Portal
provides Licensee with a working login and password sufficient to allow Licensee
to download the Licensed Software over the Internet from Portal's customer
website (www.pin.com) or in the case of products that are not distributed by
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electronic download, the date on which Portal ships such products. "Designated
Support Representatives" means the primary technical support liaison and backup
technical support liaison designated by Licensee. Licensee may change its
Designated Support Representatives by providing Portal with ten (10) days prior
written notice. Each Designated Support Representative shall attend the Licensed
Software training classes specified on Schedule A. "Documentation" means the
installation instructions and user manuals for the Licensed Software. "Licensed
Software" means collectively (i) the software products designated on Schedule A
in executable form (object code), (ii) Documentation, (iii) any source code or
object code provided to Licensee by Portal (including without limitation SDK -
software development kit - products) and (iv) Updates. Notwithstanding the
foregoing, for purposes of the sections of this Agreement titled "Support
Services" "Warranty", "Licensed Software" shall not include enhancements or
modifications of the Licensed Software products or Documentation not made
generally available to all licensees of the Licensed Software. "Licensed
Software Database" means the database (or linked databases) associated with the
Licensed Software within which the Customer Records are stored. "Licensor" means
the licensor or authorized distributor of a Third Party Product. "Major Release"
means a release version of the License Software that provides significant
additional functionality, improved performance or material changes to the
Documentation. Major Releases are represented by a release number X.Y (e.g.,
4.2, 5.0, 6.1). "Minor Release" means a release version of the Licensed Software
that does not provide significant additional functionality, improved performance
or material changes to the product or associated Documentation. Minor Releases
are represented by release numbers X.Y.Z (e.g., 4.2.1, 5.0.2, 6.1.3). "Order"
means the ordering document attached to this Agreement as Schedule B by which
Licensee may order additional Subscriber licenses, CDR licenses, software
product licenses or services. An Order shall become effective on the date it is
countersigned by Portal. "Restricted Release" means any version of the Licensed
Software marked alpha, beta or which is otherwise designated as a Restricted
Release. "Subscriber" means an individual customer record ("Customer Record") in
a Licensed Software Database. A Customer Record may be referred to as an
"account object" or a "service object" in the Licensed Software and
Documentation. The types of Subscribers licensed by Licensee under this
Agreement and their associated pricing are set forth on Schedule A. If the
Licensed Software is used to authenticate, bill, rate or otherwise track the
activities of individual users within a corporate or group account
("Organizational Hierarchy"), each such individual user will be deemed a
separate "Subordinate Subscriber". Subordinate Subscribers will be appropriately
categorized into their applicable sub-class in accordance with the criteria set
forth on Schedule A. "Support Services" means the technical and maintenance
support for the Licensed Software purchased by Licensee as set forth on attached
Schedule A. "Third Party Product" means a software product that is owned or
licensed by an entity other than Portal, which entity has authorized Portal to
sublicense its software product(s) with or embedded within the Licensed
Software. Third Party Products can only be used in conjunction with the Portal
Licensed Software to process data processed by the Licensed Software. "Update"
means a subsequent release of a Licensed Software product that is generally made
available to licensees of that Licensed Software product at no additional
charge. Updates do not include any release, option or future product that Portal
licenses separately from the Licensed Software.
2 LICENSE
2.1 Portal grants Licensee a perpetual, non-exclusive, nonsublicensable,
nontransferable license to install the Licensed Software on one or more
computers located at the Production Site(s) set forth on Schedule A and that
share the same Licensed Software Database. Licensee will use the Licensed
Software only for the Application and only for the number of Subscribers and/or
CDRs licensed under this Agreement.
2.2 Licensee may install one (1) copy of the Licensed Software on a secondary
non-production system for disaster recovery purposes only located at the Backup
Site location set forth on Schedule A. Licensee may install one (1) copy of the
Licensed Software at the Development Site location set forth on Schedule A to be
used solely for Licensee's internal testing, training and development use.
Licensee may make a reasonable number of backup copies of the Licensed Software
exclusively for inactive archival purposes only. Except as set forth
hereinabove, Licensee shall not reproduce Licensed Software, in whole or in
part. All titles, trademark symbols, copyright symbols and legends, and other
proprietary markings incorporated in, marked on, or affixed to any Licensed
Software must be reproduced on every copy of the Licensed Software and shall not
be removed or obliterated.
2.3 Licensee may modify the business policy facilities modules source code
provided by Portal however only in the manner set forth in the applicable
Documentation. Licensee is hereby granted a royalty free, perpetual,
nonexclusive license to use any such modifications only in conjunction with the
Licensed Software and subject to the same restrictions as the Licensed Software.
Notwithstanding the foregoing, Portal shall not be precluded from developing,
using, marketing, distributing, or otherwise exploiting modifications of the
business policy facilities modules source code developed by Portal.
2.4 Portal or its Licensors shall at all times retain ownership of the Licensed
Software including without limitation any and all intellectual property rights
therein and copies thereof.
2.5 Within five (5) business days of the Effective Date Portal will provide
Licensee with a login and password which will enable Licensee to download one
machine-readable copy of the Licensed Software from Portal's website or in the
case of products that are not distributed by electronic download, Portal will
ship such products within five (5) business days.
2.6 "Ancillary Programs" are software programs or functionality that Portal
distributes with or within the Licensed Software to facilitate interoperability
between the Licensed Software and other software products or functionality and
that Portal generally licenses separately and
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charges additional license and Support Service fees. Licensee will not use such
Ancillary Programs unless it obtains a license therefor from Portal.
2.7 Except for the license rights expressly granted to Licensee in this
Agreement, Portal grants and Licensee receives no other rights or licenses to
the Licensed Software, derivative works thereof, or any intellectual property
rights related thereto, whether by implication, estoppel or otherwise.
3 DEVELOPER SUITE LICENSE
For each Developer Suite license purchased by Licensee (as set forth on Schedule
A) Portal grants Licensee the right to install the Developer Suite product(s)
set forth on Schedule A on a single computer for use by a single designated
individual for the sole purpose of designing, developing, testing and adapting
third party software products to operate in conjunction with the Licensed
Software.
4 LICENSE RESTRICTIONS
Licensee will not itself, or through any parent, subsidiary, affiliate, agent or
other third party sell, lease, license, sublicense, modify (except as expressly
permitted in the applicable Documentation or as explicitly authorized by Portal
in writing) or encumber the Licensed Software or any part thereof. Except to the
minimum extent necessary to comply with applicable law (and then only to the
minimum extent allowed under such law to achieve interoperability with other
independently created computer software programs), Licensee will not itself, or
through any parent, subsidiary, affiliate, agent or other third party decompile,
disassemble, or reverse engineer any portion of the Licensed Software or attempt
to discover any source code or underlying ideas or algorithms of any Licensed
Software. Except as otherwise explicitly provided in this Agreement, Licensee
will not use the Licensed Software to provide processing services to third
parties, commercial timesharing, rental or sharing arrangements, or on a
"service bureau" basis or otherwise use or allow others to use the Licensed
Software for the benefit of any third party. Licensee will not provide,
disclose, divulge or make available to, or permit use of the Licensed Software
by persons other than Licensee's employees, contractors and agents who are under
a legally binding obligation of confidentiality consistent with the
confidentiality provisions of this Agreement. Licensee will not transport,
export, or re-export of the Licensed Software, in whole or in part in violation
of the import or export control laws or regulations of the United States or any
other applicable country.
5 LICENSE AND SUPPORT SERVICES FEES
Licensee will pay Portal the license, services and Support Services fees as set
forth on Schedule A and in each applicable Order.
6 PAYMENTS AND TAXES
6.1 Invoices for amounts due under this Agreement shall be due and payable on
the date set forth in Schedule A or relevant Order(s). If no date is stated,
payment shall be due thirty (30) calendar days from Licensee's receipt of
invoice.
6.2 All payments due under this Agreement shall be made in U.S. dollars. In
addition to any remedies Portal may have hereunder or at law, any payments more
than thirty (30) days overdue will bear a late payment fee of 1.5% per month
commencing from the payment due date. If the foregoing would not be enforceable
under applicable law, then the applicable late payment fee shall be an amount
equal to the maximum rate allowed by law, accruing from the payment due date.
6.3 Portal may suspend or terminate Support Services for non-payment continuing
for more than fifteen (15) calendar days after Licensee's receipt of a written
notice from Portal informing of the failure to pay when due. Portal shall have
no liability for damages sustained by Licensee resulting from such termination
or suspension of Support Services pursuant to this Section 6.3.
6.4 The amounts set forth in this Agreement and all Orders hereunder are
exclusive of all taxes (including without limitation, value added taxes and
withholding taxes), tariffs, duties and the like. If Portal is required to pay
any sales, use, value-added, withholding or other tax, tariff, duty, etc.,
(other than taxes on Portal's net income) on the licenses or services provided
pursuant to this Agreement or pertaining to Licensee's use of the Licensed
Software, then such taxes shall be billed to and paid by Licensee.
7 SUPPORT SERVICES
Provided Licensee has paid the applicable Support Services fees, Portal,
directly or through or its authorized agent, shall provide Licensee with
technical support services in accordance with the Support Services plan
purchased by Licensee as set forth on Schedule A. Portal reserves the right to
modify its Support Services plans any time. Portal will notify Licensee in
writing of any material modifications to Portal's Support Services plans.
Licensee shall designate one primary technical support liaison and one backup
technical support liaison who will be permitted to contact Portal during
applicable technical support services hours. Portal will support each Major
Release of the Licensed Software for at least eighteen (18) months from its
initial commercial release ("Support Term"). Portal shall have no obligation to
support (i) Licensed Software which has been damaged due to Licensee's
negligence, abuse, or misapplication, (ii) Licensed Software which has been
modified or altered in a manner not expressly authorized by Portal, (iii)
problems caused by use of the Licensed Software other than in accordance with
the Documentation, or (iv) Licensed Software installed in an operating
environment or hardware platform other than that for which it has been designed
as set forth in the applicable Documentation. Licensee will reasonably cooperate
with Portal in the resolution of support issues and, upon Portal's request and
during normal business hours, shall provide Portal with remote access to the
equipment on which the Licensed Software is installed and/or operating. Portal
will abide by Licensee's security policies and procedures and will only use such
remote access to provide Support Services for the Licensed Software. Licensee
understands that failure to provide Portal with such remote access may result in
delayed resolution of Support Services issues. If Licensee fails to provide
Portal with the above described remote access, Portal shall have no liability
for damages arising from delays which could reasonably have been avoided had
Licensee provided Portal with above-described dial-in access. Unless cancelled
by Licensee at least sixty (60) days prior to the termination of the then
current annual Support Services term, Support Services for supported products
will automatically renew at the same support level (if available) unless
terminated by Licensee or Portal as permitted under this Agreement.
8 CONSULTING SERVICES
Subject to payment of the applicable fees, Portal will provide Licensee with the
Support Services, training services and technical account management ("TAM")
services set forth on Schedule A. Additionally, Portal may from time to time
provide Licensed Software implementation or other professional consulting
services agreed to by both parties ("Consulting Services"). Prior to the
scheduling of such Consulting Services, Licensee and Portal will enter into a
Professional Services Agreement separate from this Agreement. Unless otherwise
agreed in writing, all Consulting Services will be billed on a time and
materials basis. Consulting Services are bid separately from the Licensed
Software licenses, and Licensee may acquire either Licensed Software licenses or
Consulting Services without acquiring the other.
9 RESTRICTED RELEASES
If Licensee is selected for participation and elects to participate in a
Restricted Release program, Licensee agrees (i) Portal shall have no obligation
to correct errors in or deliver updates to the Restricted Release, (ii) Portal
shall have no obligation to support the Restricted Release, (iii) Licensee will
provide Portal with appropriate test data for the Restricted Release if
necessary to resolve problems in the Restricted Release encountered by Licensee
and will promptly report to Portal any error discovered in the Restricted
Release, (iv) the Restricted Release is experimental, may contain problems and
errors and is being provided to Licensee on an "AS-IS" basis with no warranty of
any kind, express or implied, (v) neither party will be responsible to the other
for any losses, claims or damages of whatever nature, arising out of or in
connection with the performance or nonperformance of the Restricted Release,
(vi) Licensee will not use the Restricted Release in production applications
without the prior written approval of Portal, and (vii) Licensee will stop using
and return or destroy any Restricted Release promptly upon Portal's request.
10 TERMINATION
Portal may terminate a license to a Licensed Software product if Licensee fails
to pay the license fee therefor within fifteen (15) calendar days after written
notice from Portal that payment is past due. Either party may terminate this
Agreement if the other party breaches a material term of this Agreement and
fails to cure such breach within sixty (60) calendar days after receipt of
written notice describing the breach in reasonable detail. Upon termination of
this Agreement, all licenses granted hereunder shall immediately terminate,
Licensee shall immediately cease using the Licensed Software and Documentation
and Licensee shall certify in writing to Portal that all copies (in any form or
media) have been destroyed or returned to Portal. Termination shall not relieve
Licensee from paying all amounts accrued under this Agreement prior to
termination and shall not limit either party from pursuing any other available
remedies. Sections 4, 5,
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6, 10, 11, 13, 14, 15.1, 17, 18 and 19 shall survive termination or expiration
of this Agreement.
11 INFRINGEMENT INDEMNITY
Portal at its own expense shall (i) defend or at its option settle, any claim or
suit against Licensee on the basis of infringement of any trademark, copyright,
trade secret or United States patent ("Intellectual Property Rights") by the
Licensed Software or permitted use thereof, and (ii) pay any final judgment
entered against Licensee on such issue or any settlement thereof, provided (a)
Portal has sole control of the defense and/or settlement, (b) Licensee notifies
Portal promptly in writing of each such claim or suit and gives Portal all
information known to Licensee relating thereto, and (c) Licensee cooperates with
Portal in the settlement and/or defense. (Licensee shall be reimbursed for all
reasonable out-of-pocket expenses incurred in providing any cooperation
requested by Portal.) If all or any portion of the Licensed Software is, or in
the opinion of Portal may become, the subject for any claim or suit for
infringement of any Intellectual Property Rights, Portal may, and in the event
of any adjudication that the Licensed Software or any part thereof does infringe
or if the permitted use of the Licensed Software or any part thereof is
enjoined, Portal shall, at its expense do one of the following things: (1)
procure for Licensee the right to use the Licensed Software or the affected part
thereof; (2) replace the Licensed Software or affected part with other suitable
programs; (3) modify the Licensed Software or affected part to make it non-
infringing; or (4) if Portal reasonably determines that none of the foregoing
remedies are commercially feasible, refund the aggregate payments made by
Licensee for the Licensed Software or affected part thereof. Portal shall have
no obligations under this Section 11 to the extent a claim is based upon (A) the
use of any version of the Licensed Software other than a current, unaltered
version provided by Portal, if infringement would have been avoided by a current
unaltered version; or (B) combination, operation or use of the Licensed Software
with software and/or hardware not delivered by Portal if such infringement could
have been avoided by combination, operation or use of the Licensed Software with
other software and/or hardware. This Section 11 states the entire liability of
Portal and the exclusive remedy of Licensee with respect to any alleged
infringement by the Licensed Software or any part thereof.
12 WARRANTY
12.1 For ninety (90) calendar days from the Effective Date of this Agreement
("Warranty Period") Portal warrants that the Licensed Software when properly
used will operate in all material respects with its Documentation. If Licensee
provides Portal with written notice during the Warranty Period that the Licensed
Software fails to operate as warranted in this Section 12.1, Portal will use
reasonable efforts to cure the defect and make the Licensed Software operate as
herein warranted. Licensee's sole remedy in the event of breach by Portal of
this Section 12.1 shall be (i) replacement of the defective Licensed Software
program or defective portion thereof or (ii) termination of the license for the
nonconforming Licensed Software product and refund of the license fees paid
therefor. Portal shall have no obligations under this Section 12.1 to the extent
noncompliance results from (a) modification of the Licensed Software not
authorized by Portal, or (b) use of the Licensed Software for a purpose or in a
manner other than that for which it was designed. This Section 12.1 states
Portal's entire liability and Licensee's exclusive remedy with respect to any
breach by Portal of this Section 12.1.
12.2 Portal warrants that any services (including without limitation TAM,
training, implementation workshop or Support Services) performed under this
Agreement will be performed in a professional workmanlike manner consistent with
industry practices.
13 WARRANTY DISCLAIMER
EXCEPT AS EXPLICITLY SET FORTH IN SECTIONS 11 AND 12 ABOVE, PORTAL AND ITS
LICENSORS MAKE NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, OR STATUTORY REGARDING
OR RELATING TO THE LICENSED SOFTWARE OR THE DOCUMENTATION, OR ANY MATERIALS OR
SERVICES FURNISHED OR PROVIDED TO LICENSEE UNDER THIS AGREEMENT. SPECIFICALLY,
PORTAL DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL BE ERROR FREE OR WILL
PERFORM IN AN UNINTERRUPTED MANNER. TO THE MAXIMUM EXTENT ALLOWED BY LAW, PORTAL
SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF SATISFACTORY QUALITY,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE (EVEN IF PORTAL HAD BEEN
INFORMED OF SUCH PURPOSE) WITH RESPECT TO THE LICENSED SOFTWARE, DOCUMENTATION
AND SERVICES AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING.
14 LIMITATION OF LIABILITY
14.1 IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF
REVENUES OR PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, WHETHER
IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY AGREES TO TAKE REASONABLE ACTION TO
MITIGATE ITS DAMAGES. LICENSEE AGREES TO REGULARLY BACK UP ITS DATABASE(S) IN
ACCORDANCE WITH REASONABLE INDUSTRY PRACTICES.
14.2 EXCEPT IN THE CASE OF A BREACH OF SECTION 4 (LICENSE RESTRICTIONS), 11
(INFRINGEMENT INDEMNITY) OR 17 (CONFIDENTIALITY) NEITHER PARTY'S OR ITS
LICENSORS' LIABILITY FOR ANY DAMAGES SHALL EXCEED AN AMOUNT EQUAL TO THE TOTAL
FEES PAID AND OWED TO PORTAL UNDER THIS AGREEMENT.
15 AUDIT RIGHTS/QUARTERLY REPORTS
15.1 Licensee shall keep and maintain full, accurate and detailed records
regarding its payment obligations, the licenses granted under this Agreement and
the number and types of Subscribers in the Licensed Software Database and/or the
number of CDRs processed. Portal may, at its expense, no more than once per
year, and on thirty (30) days prior written notice, audit Licensee's use of the
Licensed Software and compliance with this Agreement. Any such audits shall
occur during normal business hours and shall not unreasonably interfere with
Licensee's business operations. If any such audit reveals a deficiency in any
amounts due to Portal hereunder, Licensee will be invoiced for such underpaid
fees based on the Price List in effect at the time the audit is completed. If
the underpaid fees exceed five percent (5%) of the license fees paid, then
Licensee shall also pay Portal's reasonable costs of conducting the audit.
Audits shall be conducted no more than once annually.
15.2 Commencing ninety (90) calendar days from each applicable Licensed
Software Delivery Date, Licensee will provide Portal with quarterly reports
("License Compliance Reports") setting forth (i) the total numbers and types of
Subscribers in the Licensed Software Database and the number of CDRs processed
by the Licensed Software, (ii) a statement of any additional license and Support
Services fees owed to Portal and a reasonable summary of how such amounts were
calculated, and (iii) the then-current addresses of all locations where the
Licensed Software is installed. Within thirty (30) days following the end of
each calendar quarter the License Compliance Reports shall be sent to Portal
care of (or such other address as Portal may designate in writing):
License Compliance Division
Portal Software, Inc.
10200 South De Anza Boulevard
Cupertino, CA 95014
16 ASSIGNMENT/BINDING AGREEMENT
Neither this Agreement nor any rights under this Agreement may be assigned or
otherwise transferred by Licensee (by operation of law or otherwise), in whole
or in part, including by way of merger, acquisition or sale of all or
substantially all of the assets in one or more related transactions, without
Portal's prior written consent.
17 CONFIDENTIALITY
Each Party acknowledges that the Confidential Information constitutes valuable
trade secrets and each party agrees that it shall use the Confidential
Information of the other party solely in accordance with the provisions of this
Agreement and it will not disclose, or permit to be disclosed, the same directly
or indirectly, to any third party without the other party's prior written
consent. Notwithstanding the foregoing, either party may disclose Confidential
Information, in whole or in part (i) to its employees, officers, directors,
Licensors and or subcontractors who have a reasonable need to know and are
legally bound to keep such information confidential by confidentiality
obligations consistent with those of this Agreement, (ii) to its financing
sources, auditors, attorneys, other agents, financial institutions, professional
advisors and/or substantial potential investors having a reasonable need to
know, having no reasonably anticipated conflict of interest with the other
Party, and under a contractual or professional duty to maintain the
confidentiality of the terms and conditions disclosed thereto. Each party agrees
to exercise due care in protecting the Confidential Information from
unauthorized use and disclosure. However, neither party bears any
responsibility for safeguarding any information that it can document in writing
(a) is in the public domain through no fault of its own, (b) was properly known
to it, without restriction, prior to disclosure by disclosing party, (c) was
properly
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disclosed to it, without restriction, by another person with the legal
authority to do so, (d) is independently developed by receiving party without
use of or reference to disclosing party's Confidential Information or (e) is
required to be disclosed pursuant to a judicial or legislative order or
proceeding; provided that, to the extent permitted by and practical under the
circumstances, receiving party provides to disclosing party prior notice of the
intended disclosure and an opportunity to respond or object to the disclosure or
if prior notice is not permitted or practical under the circumstances, prompt
notice of such disclosure. In the event of actual or threatened breach of the
provisions of Section 4 or Section 17, the non-breaching party will be entitled
to seek immediate injunctive and other equitable relief, without waiving any
other rights or remedies available to it.
18 NOTICE
Any notice required or permitted under the terms of this Agreement or required
by law must be in writing and must be (a) delivered in person, (b) sent by
registered mail, return receipt requested, (c) sent by overnight air courier, or
(d) by facsimile, in each case forwarded to the appropriate address set forth
above. Either party may change its address for notice by written notice to the
other party. Notices will be considered to have been given at the time of
actual delivery in person, three (3) business days after posting, or one (1)
business day after (i) delivery to an overnight air courier service or (ii) the
moment of transmission by facsimile.
19 MISCELLANEOUS
19.1 Neither party will incur any liability to the other on account of any loss
or damage resulting from any delay or failure to perform all or any part of this
Agreement if such delay or failure is caused, in whole or in part, by events,
occurrences, or causes beyond its control and without negligence of the parties.
Such events, occurrences or causes will include, without limitation, acts of
God, strikes, lockouts, riots, acts of war, earthquakes, fire and explosions,
but the ability to meet financial obligations is expressly excluded.
19.2 Any waiver of the provisions of this Agreement or of a party's rights or
remedies under this Agreement must be in writing to be effective. Failure,
neglect or delay by a party to enforce the provisions of this Agreement or its
rights or remedies at any time will not be construed to be deemed a waiver of
such party's rights under this Agreement and will not in any way affect the
validity of the whole or any part of this Agreement or prejudice such party's
right to take subsequent action.
19.3 If any term, condition or provision in this Agreement is found to be
invalid, unlawful or unenforceable to any extent, the parties shall endeavor in
good faith to agree to such amendments that will preserve, as far as possible,
the intentions expressed in this Agreement. If the parties fail to agree on such
an amendment, such invalid term, condition or provision will be severed from the
remaining terms, conditions and provisions, which will continue to be valid and
enforceable to the fullest extent permitted by law.
19.4 This Agreement (including the Schedules and any addenda hereto signed by
both parties) contains the entire agreement of the parties with respect to the
subject matter of this Agreement and supersedes all previous communications,
representations, understandings and agreements, either oral or written, between
the parties with respect to said subject matter. No employee, agent,
representative or affiliate of Portal has authority to bind Portal to any oral
representations or warranty concerning the Licensed Software. Any written
representation or warranty not expressly contained in this Agreement is
unenforceable.
19.5 No terms, provisions or conditions of any purchase order, acknowledgement
or other business form that Licensee may use in connection with the acquisition
or licensing of the Licensed Software will have any effect on the rights, duties
or obligations of the parties under, or otherwise modify, this Agreement,
regardless of any failure of Portal to object to such terms, provisions, or
conditions.
19.6 The parties agree to reasonably cooperate in joint marketing and public
relations activities including without limitation the issuance of a joint press
release announcing Licensee's selection of the Portal solution and participation
in Portal's Success Stories program. Licensee's public relations personnel will
have an opportunity to review and approve the final draft of any joint public
relations materials before distribution to the press. Following successful
implementation of the Licensed Software and at Portal's request, Portal shall be
permitted to conduct a brief telephone interview (not to exceed thirty minutes
without Licensee's consent) with a senior-level spokesperson within Licensee's
organization involved with the implementation of the Portal solution. Portal may
write and publish a high-level success story profile based on the interview and
discussing the reasons supporting Licensee's choice of the Portal solution and
the benefits realized by Licensee. Licensee shall have final approval over the
final content of such literature prior to initial distribution by Portal. Except
as provided in this Agreement, neither party will engage in joint public
relations activities without the prior written consent of the other party, which
consent shall not be unreasonably withheld, conditioned or delayed.
19.7 Licensee agrees to be a reference account for Portal and will, at Portal's
request, participate in at least four (4) telephone reference inquiries per year
and at least one (1) onsite visit per year provided that Portal shall give
Licensee reasonable advance notice of not less than (i) 48 hours in the case of
a telephone reference visit and (ii) 7 days in the case of an onsite visit.
Further, Portal shall be permitted to identify Licensee as a customer so long as
such use does not imply endorsement.
19.8 This Agreement may be executed in counterparts, each of which so executed
will be deemed to be an original and such counterparts together will constitute
one and the same Agreement.
19.9 Portal is an independent contractor; nothing in this Agreement shall be
construed to create a partnership, joint venture or agency relationship between
the parties.
19.10 If this license is acquired under a U. S. Government contract, use,
duplication or disclosure by the U. S. Government is subject to restrictions set
forth in FAR subparagraphs 52.227-19(a)-(d) for civilian agency contracts and
DFARS 252.227-7013(c)(ii) for Department of Defense contracts. Portal reserves
all unpublished rights under United States copyright laws.
19.11 In the event that this Agreement or the licenses granted hereunder should
ever become subject to US bankruptcy proceedings, all rights and licenses
granted under or pursuant to this Agreement by Portal to Licensee are, and shall
otherwise be deemed to be, licenses of rights to "intellectual property" as
defined in Section 365(n) of the Bankruptcy Code (11 U.S.C. Section 101 et.
seq.). The parties agree that Licensee, as a licensee of such rights, shall
retain and may fully exercise all of the rights and election under Section
365(n) of the Bankruptcy Code. The parties further agree that, in the event
that any proceeding shall be instituted by or against Portal seeking to
adjudicate it bankrupt, or insolvent, or seeking liquidation, winding up,
reorganization, insolvency or reorganization, or relief of debtors, or seeking
an entry of an order of relief, or the appointment of a receiver, trustee or
other similar official for it or any substantial part of its property or it
shall take any action to authorize any of the foregoing actions, Licensee shall
have the right to retain and enforce its rights under this Agreement as provided
under Section 365(n) of the Bankruptcy Code, including but not limited to, the
right to continue to use the Licensed Software in accordance with the terms and
conditions of this Agreement.
19.12 This Agreement will be interpreted and construed pursuant to the laws of
the State of California and the United States without regard to conflict of laws
provisions thereof, and without regard to the United Nations Convention on the
International Sale of Goods. Any legal action or proceeding relating to this
Agreement shall be instituted in a state or federal court in Santa Clara County,
California. Portal and Licensee agree to submit to the jurisdiction of, and
agree that venue is proper in, these courts in any such action or proceeding.
19.13 The prevailing party in any action to enforce this Agreement will be
entitled to recover its reasonable attorney's fees and costs in connection with
such action.
19.14 The provisions of this Agreement allocate the risks between Portal and
Licensee. Licensee's pricing reflects this allocation of risk and the limitation
of liability specified in this Agreement.
19.15 The parties have requested that this Agreement and all documents
contemplated hereby be drawn up in English.
Page 4 of 10
<PAGE>
IN WITNESS WHEREOF, the authorized representatives of the parties hereby bind
the parties by signing below:
_______________________________ Portal Software, Inc.
"Licensee"
By:____________________________ By:____________________________
Name:__________________________ Name:__________________________
Title:_________________________ Title:_________________________
Date:__________________________ Date:__________________________
Page 5 of 10
<PAGE>
SCHEDULE A
1 LICENSED SOFTWARE
The following Portal Software products and their associated online documentation
will be provided by Portal and will comprise the "Licensed Software":
. Infranet Base System
. Infranet Dial-up Manager
. Infranet Email Manager
. Infranet Netflow Manager
. Infranet IPT Manager
. Infranet Cable/CSRC Manager
. Infranet Cable TeraComm manager
. Infranet EAI Manager
. Infranet Wireline Manager
. Infranet SSM
. Infranet MCIS Manager
. Infranet LDAP Manager
. Infranet Brand Manager
. Infranet DNA
. Infranet MultiDB
. Seagate Reports for Infranet: includes one (1) Seagate(R) Crystal Info
Designer Add-in Tool and two (2) Seagate Crystal Info Desktop Client
. Business Policy Facilities Modules Source Code
2 APPLICATION/SUBSCRIBERS
2.1 Application: Customer management and billing of Subscribers to
Licensee's...
2.2 Subscriber Types: Licensee will use the Licensed Software only for the
types of Subscribers set forth below and only within the scope of the
Application. If Licensee desires to use the Licensed software for other
Subscriber types or for a different scope of use then Licensee must obtain
an additional license therefor from Portal for additional fees.
2.2.1 Individual Subscriber: means is a Customer Record that represents an
individual person (for the purposes of this agreement a "person" is an
individual human being, not a business, corporation or other entity) that
(i) subscribes to one or more of Licensee's consumer services within the
scope of the Application or (ii) is a Subordinate Account under an
Organizational Hierarchy.
2.2.3 FreeServ Subscriber: means a Customer Record representing a Person
that subscribers to a no-fee service and for which monetary balances are
not associated.
2.2.4 Business Subscriber: means a Customer Record that represents a
person or entity that is not an Individual Subscriber or a FreeServ
Subscriber. Business Subscriber are subcategorized as follows:
2.2.5 "SOHO Subscriber" means a Customer Record that represents a person
or entity that in the aggregate (i.e., taking into account all revenue
generated by the SOHO Subscriber and its Subordinate Subscribers) generate
no more than $100.00 in monthly gross revenue.
2.2.6 "Medium Business Subscriber" means a Customer Record that in the
aggregate (i.e., taking into account all evenue generated by that Medium
Business Subscriber and its Subordinate Subscribers) generate more than
$100.00 but less than $500.00 in monthly gross revenue.
2.2.7 "Large Business Subscriber" means a Customer Record that in the
aggregate (i.e., taking into account all revenue generated by that Large
Business Subscriber and its Subordinate Subscribers) generate more than
$500.00 but less than $1,500.00 in monthly gross revenue.
2.2.8 "Very Large Business Subscriber" means a Customer Record that in the
aggregate (i.e., taking into account all revenue generated by that Very
Large Business Subscriber and its Subordinate Subscribers) generate more
than $1,500.00 but less than $3,000.00 in monthly gross revenue.
Page 6 of 10
<PAGE>
2.3 INITIAL SUBSCRIBER LIMITS:
2.3.1 SOHO Subscribers:
2.3.2 Medium Business Subscribers:
2.3.3 Large Business Subscribers:
2.3.4 Very Large Business Subscribers:
3 INSTALLATION SITES
------------------
3.1 Production Site:
3.2 Development Site:
3.3 Backup Site:
4 LICENSE AND MAINTENANCE SUPPORT SERVICE FEES
--------------------------------------------
4.1 Software License Fees
The following table sets forth the license fees for use of the Licensed
Software for the Application for the number of Subscribers set forth in
Section 2.3 above.
<TABLE>
<CAPTION>
Description License Fee Payment Due Date
<S> <C> <C>
$ Effective Date
</TABLE>
4.2 Annual Gold Level Support Services Fees
Portal will provide one year of Gold Level Maintenance Support Services for
the number of Subscribers set forth in Section 2.3 above for the annual fee
set forth below.
<TABLE>
<CAPTION>
Description Annual Fee Annual Payment Date
<S> <C> <C>
Gold Level Support Services $ Effective Date
</TABLE>
4.3 ADDITIONAL SUBSCRIBER LICENSE AND SUPPORT SERVICES FEES
-------------------------------------------------------
For one (1) year from the Effective Date Licensee may purchase licenses to
use the Licensed Software for the Application for additional Subscribers
("Additional Subscribers") for the amounts set forth below and by using the
Order Form attached to this Agreement as Exhibit B. Additional Subscribers
must be licensed in the incremental blocks specified and not one at a time.
Associated Annual Support Services fees are due when Additional Subscribers
are licensed but will be prorated over the remainder of the annual Support
Services term during which they are added.
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------------
Subscriber Numbers Subscribers in Block License Fee per Block Annual Support Services Fee
Per Block
-----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
$ $
-----------------------------------------------------------------------------------------------------------------------
$ $
-----------------------------------------------------------------------------------------------------------------------
$ $
-----------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 7 of 10
<PAGE>
5 TRAINING
Portal will provide training at its corporate training facilities in
accordance with the rates set forth below. Licensee shall register for actual
training class dates through Portal's website (www.portal.com). Training fees
--------------
shall be due and payable on the Effective Date.
<TABLE>
<CAPTION>
Class Price per No. of Students per Class Total
Student
-------------------------------------------------------------------------------------
<S> <C> <C> <C>
Customizing Infranet Business Policies $3,000.00
-------------------------------------------------------------------------------------
Customizing Infranet Customer Center $2,000.00
-------------------------------------------------------------------------------------
Extending Infranet $3,000.00
-------------------------------------------------------------------------------------
Implementing Infranet $3,000.00
-------------------------------------------------------------------------------------
Infranet Pricing Strategies $1,200.00
-------------------------------------------------------------------------------------
Infranet Accounting $ 500.00
-------------------------------------------------------------------------------------
Infranet Customer Management $ 600.00
-------------------------------------------------------------------------------------
Infranet System Administration $2,400.00
-------------------------------------------------------------------------------------
Business Infrastructure for Internet $ 100.00
Services
-------------------------------------------------------------------------------------
Introduction to Pricing $ 200.00
-------------------------------------------------------------------------------------
Infranet Reports $ 200.00
-------------------------------------------------------------------------------------
Understanding Infranet's General Ledger $ 200.00
-------------------------------------------------------------------------------------
</TABLE>
6 TECHNICAL ACCOUNT MANAGEMENT ("TAM") SUPPORT
Portal will provide ____ [hours/days] (in blocks of 8 hours per day) of TAM
support in accordance with attached Schedule ___ for a fee of _______________
($______). In addition, Licensee shall pay all actual and reasonable travel
expenses incurred with providing TAM support. TAM support fees shall be due
and payable on the Effective Date.
7 PAYMENT SCHEDULE
Licensee agrees to make payment in accordance with the following table:
<TABLE>
<CAPTION>
Description Amount Payment Due Date
--------------------------------------------------------------------------------------
<S> <C> <C>
License Fee Payment #1 $ Effective Date
--------------------------------------------------------------------------------------
License Fee Payment #2 $ 30 Days from Effective Date
--------------------------------------------------------------------------------------
License Fee Payment #3 $ 60 Days from Effective Date
--------------------------------------------------------------------------------------
License Fee Payment #4 $ 90 Days from Effective Date
--------------------------------------------------------------------------------------
Annual Gold Support Payment $ Effective Date
--------------------------------------------------------------------------------------
</TABLE>
Page 8 of 10
<PAGE>
SCHEDULE B
ORDER
Quote or Agreement Number:_______________________________
Licensee Purchase Order Number:__________________________
PURSUANT TO THE SOFTWARE LICENSE AGREEMENT ("AGREEMENT") BETWEEN PORTAL
SOFTWARE, INC. ("PORTAL") AND _____________________________________ ("LICENSEE")
(COLLECTIVELY "THE PARTIES") ENTERED INTO BY THE PARTIES ON OR ABOUT
_______________, 2001, LICENSEE HEREBY LICENSES THE ADDITIONAL SUBSCRIBERS
AND/OR ADDITIONAL PRODUCTS SET FORTH BELOW AS CONTEMPLATED IN SECTION ___ OF
SCHEDULE A OF THAT AGREEMENT. THE ADDITIONAL SUBSCRIBERS/PRODUCTS LICENSED
UNDER THIS ORDER ("ORDER") ARE SUBJECT TO ALL OF THE TERMS AND CONDITIONS OF THE
AGREEMENT. THIS ORDER SHALL BECOME EFFECTIVE ON THE DATE IT IS SIGNED BY PORTAL.
PORTAL SOFTWARE, INC. LICENSEE_______________________________________
10200 S. DE ANZA BOULEVARD CONTACT _______________________________________
CUPERTINO, CA 95014 ADDRESS _______________________________________
CITY _______________________________________
STATE _______________________ ZIP ___________
PHONE ___________________ FAX: ______________
ADDITIONAL SUBSCRIBERS
----------------------
<TABLE>
<CAPTION>
APPLICATION NO. SUBSCRIBER TYPE QTY LICENSE FEE ANNUAL SUPPORT FEE
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
$ $
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
TOTAL $ $
----------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 9 of 10
<PAGE>
ADDITIONAL SOFTWARE PRODUCTS
----------------------------
THE FOLLOWING SOFTWARE PRODUCTS ARE HEREBY ADDED TO THE DEFINITION OF "LICENSED
SOFTWARE" IN SCHEDULE A OF THE AGREEMENT:
<TABLE>
<CAPTION>
PRODUCT SUBSCRIBER TYPE NO. OF SUBSCRIBERS LICENSE FEE ANNUAL SUPPORT FEE
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
$ $
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
TOTAL $ $
----------------------------------------------------------------------------------------------------------------------
</TABLE>
I DECLARE THAT THE ABOVE INFORMATION IS ACCURATE AND THAT I AM IN COMPLIANCE
WITH MY COMPANY'S BUSINESS PRACTICES IN MAKING THIS PURCHASE. BY SIGNING THIS
ORDER, LICENSEE AGREES TO BE BOUND BY THIS ORDER AND LICENSEE AUTHORIZES PORTAL
TO INVOICE LICENSEE FOR THE AMOUNTS SET FORTH HEREINABOVE, PLUS APPLICABLE TAX,
VAT AND DELIVERY CHARGES.
TAX EXEMPT NO:___________________________ LICENSEE:____________________
P. O. NUMBER:____________________________ SIGNATURE:___________________
BILLING ADDRESS:_________________________ NAME/TITLE:__________________
_________________________________________ DATE SIGNED:_________________
_________________________________________
ORDER ACCEPTED BY PORTAL:
NAME:____________________________________
TITLE:___________________________________
DATE:____________________________________
Page 10 of 10